Solicitors don't have to be friendly to opponents but must act with integrity, says White & Case's Robert Wheal

Although it is widely recognised that litigation is adversarial, it should not be conducted as if it were warfare. Yet establishing the boundary between acceptable tactics and unconscionable conduct can sometimes prove difficult.

A recent Court of Appeal decision in the Bethell Construction v Deloitte and Touche case provides some useful judicial guidance on this legal dilemma. In this case, the court considered the extent to which a litigant may properly 'set a trap' for his opponent. The facts were straightforward. In June 2007, Bethell, the claimant, agreed a stay of its claim for professional negligence. The stay included a provision extending time for service of the claim form and particulars of claim. This extension could be terminated on 14 days' notice.

After more than three years of dialogue, Bethell served its particulars of claim in October 2010 but did not serve the claim form, which remained unserved.

trapsDeloitte's solicitors responded, giving notice that they were determining the stay but, significantly, did not indicate that Bethell's attempted service of particulars of claim, without the claim form, was ineffective. Once the stay had elapsed, Deloitte's solicitors wrote to Bethell stating that the period permitted for service of the claim form had expired and Bethell's claims were "irreparably time barred". As you would expect, Bethell subsequently raised various arguments in an attempt to get over the time bar.

Although the detail of the arguments – which were rejected at first instance and in the Court of Appeal – is not notable, the case is interesting because those arguments had at their crux the question of whether Deloitte should have been allowed to benefit from the trap it had set.

Despite the Court having little doubt that the defendant's solicitors were seeking to set a trap, it did not perceive a "deliberate intention to mislead".

On appeal, Bethell cited a 1993 case – The Stolt Loyalty – in which the claimants had misunderstood the ambit of an extension of time granted by the defendants and the judge decided it would not be reasonable to allow the defendants to rely on the time bar.

In the Bethell case, the Court provided additional guidance on The Stolt Loyalty test and noted that the defendants in the former case had deliberately allowed the claimants to continue in their mistaken belief that they had asked for all the relevant extensions of time, which was not the case.

However, that was not the case in Bethell. Deloitte's solicitor did not merely acknowledge the particulars of claim, she went further by giving the requisite notice to determine the stay which, properly understood, required the claim form to be served as well as the particulars of claim.

After finding that there was nothing in the inter-solicitor correspondence to justify penalising Deloitte, the Court cited "even accepting that they [the defendant] had set a trap, the cause of Bethell's problem was that Mr Austin [the solicitor] fell into it".

This ruling highlights that a trap in itself is not objectionable. The key question is whether the trap involves unconscionable behaviour. If it does, the Court may intervene, as in The Stolt Loyalty, whereas if there is nothing untoward about the conduct, the Court will allow the trap to be sprung with all the consequences that follow.

It may also be that judicial attitudes, as to what is acceptable and what is unconscionable, have changed since 1993, and lawyers must now be more vigilant.

The decision in this case is consistent with the principle that a solicitor owes no duty of care to his opponent albeit that solicitors do owe a professional obligation to act with integrity both under the code of conduct and as officers of the court. As the courts have previously noted: "Heavy hostile commercial litigation is a serious business. It is not a form of indoor sport and litigation solicitors do not owe each other duties to be friendly (as far as that goes beyond politeness) or to be chivalrous or sportsman-like (as far as that goes beyond being fair). Nevertheless, even in the most hostile litigation (indeed, especially in the most hostile litigation) solicitors must be scrupulously fair and not take unfair advantages of obvious mistakes."

The key question for any court is whether the solicitor setting the trap or taking advantage of the mistake has acted fairly. What the Bethell case does confirm is that it is up to solicitors to avoid traps because they cannot expect the court to come to their aid just because they have been hoodwinked by their adversary.

Robert Wheal (pictured) is a partner at White & Case.